Law-Legal Issues

Law-Legal Issues

Introduction

The law of provocation has always been in the English Law, recognized as human frailty. This has a background of common law of change and interpretation, and the defence that is presented in the modern day court room still appears outdated. According to Holten and Shute, this defence law has features that cannot be applied in the modern day times. It has always been under criticism, and many wanted for a reform. The Law of Commission has, therefore, focused on this topic giving suggestions on reform and changes in the defences of murder homicide.

Wells noted that the law of provocation and the rules of diminished responsibility do not fit well with women especially, and a new defence structure is required. The Law of Coroners has been in attention in the Parliament and has gained much attention and support.

Discussion

The Coroners and Justice Act abolishes the common law defence of provocation and it has replaced it with defence of "loss of control", which nonetheless keeps a test of rationality for provocative conduct and the response of accused to it. This new act symbolizes some aspects of the common law's test of "a reasonable person" but has modified others. The Coroners and Justice Act has retained the defence of diminished responsibility but has made certain changes to the requirements which has clarified the law and made the defence more practical in nature. These revisions in the law of provocation and diminished responsibility are the result of the thorough and lengthy pondering by two Law Commissions and by the Ministry of Justice.

It is also worth highlighting that the English revisions have been made in the context of leaving the law of homicide intact. In particular, murder continues to be a single offence attracting a mandatory penalty; and the newly revised partial defences have the effect of reducing the crime of murder to manslaughter.

The Partial Defence to Murder of Loss of Control, which is expressed in sections 54 and 55 of the Coroners and Justice Act, seeks to solve a number of problems with the defence of provocation which it replaces. Those problems were that the defence of provocation had a mixture if common law statute and rules that were confusing, there was continuing uncertainty over the qualities of the “reasonable person” in the law of provocation, and over what constitutes permissible provocative conduct. Furthermore, the defence privileged men's typical reaction to over women's by being too generous to those who killed in anger and too hard on those who killed from fear of serious violence. The new defence has two parts, which share common features except that the “qualifying trigger” for each differs. For the first part, the loss of self-control of the accused is characterized to his or her serious violence fear from the deceased against the accused, while for the second, loss of self-control is the result of conduct or words or both which caused the accused to have a justified sense of being wronged. To distance itself from the former ...